Kusznir v. City of Shelton, No. Cv94 04 71 36s (Sep. 29, 1994)

1994 Conn. Super. Ct. 9951

• Court: Connecticut Superior Court
• Decided: September 29, 1994
• Docket: No. CV94 04 71 36S
• Status: Unpublished

Opinion

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION The plaintiff appellant Dawn Kusznir has filed this appeal CT Page 9952 from a decision of the defendant appellee Shelton Board of Zoning Appeals upholding a decision of the zoning enforcement officer. The zoning enforcement officer, pursuant to the authority set forth in Section 3.1 of the Shelton Zoning Regulations, issued a cease and desist order against the plaintiff herein after a hearing held by the Planning and Zoning Commission wherein they concluded that Vietnamese Pot Bellied Pigs were livestock within the meaning of the Sheltong [Shelton] Zoning Regulations. In particular, they found that, in accordance with the Shelton Zoning Regulations, Schedule A, "Permitted uses Number 9, Vietnamese Pot Bellied Pigs were livestock and required a lot size of two or more acres. From that decision and the resulting cease and desist order, the plaintiff appealed to the Board of Zoning Appeals. The decision of the Planning and Zoning Commission and order to cease and desist issued by the zoning enforcement officer were upheld and, thereafter, the plaintiff appealed to this court seeking relief.

The plaintiff is the owner and resides at 34 Birchbank Road in the City of Shelton. It is at this location, that she has two Vietnamese Pot Bellied pigs which she keeps as house pets for the pleasure of she and her teenage son. While the weight of such pigs may range up to 150 pounds, the two in question are somewhat lighter. In order to keep them from gaining such weight, it is necessary to keep a strict watch over their diet. While these pets spend some time each day outdoors, for the most part they are kept inside the plaintiff's home.

This matter was brought to the attention of the zoning enforcement officer by the filing of a complaint by a neighbor. After investigating, the zoning enforcement officer brought the matter to the attention of the Planning and Zoning Commission. The Commission convened a hearing to discuss the matter and to take whatever action it deemed necessary. Petitions opposed to and in favor of the plaintiff were filed by large groups of Shelton citizens. At the hearing, testimony both pro and con was received, including the testimony of a veterinarian who testified on behalf of the plaintiff.

The discussion before the Planning and Zoning Commission centered around whether the Vietnamese pigs were livestock. Several definitions of the word "livestock" were submitted to the Board by counsel for both the Board and the appellant. All of the definitions, in general, defined livestock as horses, cattle, swine, et cetera, kept for use or pleasure. The plaintiff claims CT Page 9953 that the animals were household pets and should be classified as such and not as livestock. The regulation in question does not distinguish between livestock in general and livestock as household pets. It contains no exception for livestock kept as household pets.

The Shelton Zoning Regulations, Schedule A — Permitted Uses reads as follows: "Farms, truck gardens, forestry and the keeping of livestock and poultry provided that no livestock or poultry shall be kept on a lot less than two (2) acres."

Plaintiff's property is in an R-1 residential zone. It is 50 feet by 320 feet. (See Plaintiff's Exhibit A). These measurements indicate an overall size of less than two acres.

"Boards of Appeal are necessarily entrusted with the function of deciding, within prescribed limits and consistent with the exercise of a legal discretion, whether a regulation applies to a given situation, and the manner of its application. Stern v.Zoning Board of Appeals, 140 Conn. 241, 245, 99 A.2d 130; Pascalev. Board of Zoning Appeals, 150 Conn. 113, 116, 186 A.2d 377. In discharging this responsibility, a board is endowed with a liberal discretion and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal." Connecticut Sand Stone Corporation v. Zoning Boardof Appeals, 150 Conn. 439, 442; Florentine v. Darien, 142 Conn. 415,426, 115 A.2d 328.

"Courts are not to substitute their judgment for that of the board; . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing. . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons." (Internal citations omitted.) Whittaker v. Zoning Board of Appeals,179 Conn. 650, 654.

There was an extensive record before the Board of Zoning Appeals. Both sides presented considerable evidence to the Board and, after careful deliberation, the Board found that Vietnamese Pot Bellied pigs were livestock within the meaning of the Shelton Zoning Regulations. As a result, they upheld the cease and desist order promulgated by the zoning enforcement officer.

The court finds that the Board did not abuse its discretion, CT Page 9954 nor act arbitrarily or illegally and finds the issues for the defendant Shelton Board of Zoning Appeals. The plaintiff is given 30 days in which to find other accommodations for the animals.

The Court

Curran, J. State Trial Referee